As LGBT rights expand, remember First Amendment

Conflicts in Texas and Idaho in recent weeks have re-invigorated fears in conservative religious circles that expanding protections for LGBT rights will threaten their religious freedom.

In Houston, city lawyers obtained subpoenas requiring five pastors to turn over sermons and other communications that mention the city’s equal rights ordinance. With assistance from the Alliance Defending Freedom (ADF), the pastors sued to nullify the subpoenas as overly broad and irrelevant to the case.

Meanwhile, in Coeur d’Alene, Idaho, the city attorney opined earlier this year that two Pentecostal pastors who run a for-profit wedding chapel called Hitching Post must offer services to same-sex couples in compliance with a local ordinance banning discrimination based on sexual orientation in places of public accommodation.

A few weeks ago, the owners of Hitching Post — again with help from ADF — also filed suit to prevent city officials from forcing them to perform same-sex wedding ceremonies or face prosecution for violating the city’s anti-discrimination law. The pastors say they decided to sue after police officials contacted them about a complaint from a same-sex couple who were refused service by the Hitching Post.

In their zeal to uphold non-discrimination, city attorneys in both places were, to put it charitably, tone-deaf to the protections of the First Amendment.

The Texas controversy centers on an amendment to the Houston Equal Rights Ordinance (HERO) passed by the city council last May that, among other things, expands protections for gay and transgender people.

Opponents of the ordinance attempted to place a repeal on the ballot in November, but their petition was rejected for not having enough valid signatures. Four taxpayers then sued the city, claiming that the referendum petition was wrongly invalidated.

As part of the discovery process, lawyers for the city obtained subpoenas for communications relating to the anti-HERO campaign — including subpoenas to five Houston pastors active in opposition to the ordinance, but not parties to the lawsuit.

The pastors were instructed to turn over “all speeches, presentations, or sermons” related to HERO.

Religious leaders and civil libertarians from across the spectrum have spoken out against the sweeping scope of the subpoenas, pointing out that the First Amendment protects the preaching and teaching of religious leaders from government oversight or intrusion.

At first, Houston Mayor Annise Parker appeared to defend the subpoenas, tweeting that sermons on political topics were “fair game.” But a few days later, she acknowledged that the subpoenas were overly broad and agreed to remove the request for “sermons.”

The pastors and ADF, however, weren’t satisfied, arguing that the subpoenas would still require the pastors to turn over 17 different categories of information, including private communications with their church members.

Under pressure to reverse course, Mayor Parker announced this week that the city would withdraw the subpoenas entirely.

Coeur d’Alene city officials also appear to have either changed their position or rejected the position attributed to the city attorney by publicly acknowledging that Hitching Post is exempt from the city’s non-discrimination law when performing religious marriages.

Some commentators have compared the Hitching Post controversy to conflicts across the country involving wedding vendors such as florists, bakers and photographers who have thus far failed to get exemptions from non-discrimination laws. But whatever the merits of those decisions, Hitching Post is a very different case.

It’s true, of course, that for-profit businesses are places of public accommodation generally subject to non-discrimination laws. But ordained ministers — whether in a non-profit or for-profit setting — are protected by the Free Exercise and Free Speech clauses of the First Amendment from being compelled by government to perform religious ceremonies that violate their faith.

If government officials in other cities want to avoid unnecessary conflicts and lawsuits like those that have divided Houston and Coeur d’Alene, they should think carefully how to protect First Amendment rights even as they work to implement laws protecting LGBT people from discrimination.

Striking a balance between ending discrimination on the basis of sexual orientation and upholding religious freedom will not be easy. As happens whenever competing claims clash in a pluralistic democracy, there will be winners and losers.

But surely Americans on all sides can agree on at least this: Under the First Amendment, religious leaders have the right to practice their faith — including preaching sermons and performing religious ceremonies — without governmental interference or intimidation.

Charles C. Haynes is senior scholar at the First Amendment Center. Email chaynes@freedomforum.org.